5.  The applicant was born in 1953. He is currently detained in prison.
6.  On 16 December 2005 a criminal investigation was opened in connection with a sexual offence allegedly committed the previous day by the applicant against V. and K. (boys aged 11 and 17).
7.  On the same day, K., V. and V.’s older brother were interviewed by police.
8.  K. submitted that he had known the applicant for a long time and had visited him a couple of times with friends. In respect of the events in question he stated that the boys had stayed overnight at the applicant’s home, but he had no recollection of what had happened that night as he had been drunk and had fallen asleep. When he woke up the next morning the boys had been naked and their underpants were missing. V. told him that the applicant had undressed them and engaged in oral sex with both of them. The next evening, when the boys returned to the applicant’s residence, the applicant accused K. of breaking the windows of his house, damaging his car and stealing blank CDs from his home. There was an argument and a minor scuffle between the applicant and K.
9.  V. was interviewed in the presence of a psychologist and the interview was video-recorded. According to him the boys had drunk alcohol with the applicant. The boys had gone to bed dressed but during the night the applicant had undressed them and engaged in oral sex with both of them. The next morning the boys’ underpants had been missing. V. had told his brother what had happened. The next evening, when the boys returned to the applicant’s residence, the applicant had attacked K. The copy of the report of the interview in the case file contains no mention of a promise made to V. that if he told what had happened he would never be asked questions about it again (see paragraph 22 below).
10.   According to V.’s brother V. had told him about the applicant having undressed the boys and engaged in oral sex with them. The next evening V.’s brother had gone with V. and K. to the applicant’s home. He submitted that there had been a conflict between the applicant and K.
11.  On the same day, 16 December 2005, the applicant was arrested and questioned in respect of a suspicion under Article 142 § 2 (satisfaction of sexual desire in respect of a minor) of the Penal Code (Karistusseadustik). He denied having had oral sex with the boys, said that he had had an altercation with them and suggested that they might have wished to take revenge. According to the record of the interview the applicant did not wish defence counsel to be present.
12.  On 17 December 2005 the Tartu County Court heard the applicant, who was assisted by counsel, and remanded him in custody.
13.  On 29 December 2005 the applicant was again interviewed in respect of the suspicion under Article 142 § 2 of the Penal Code according to which he had had oral sex with the victims. This time the interview took place in the presence of counsel. The applicant submitted that because of a memory blackout due to intoxication he was unable either to confirm or deny whether he had committed the offence he was suspected of. He acknowledged his bisexuality and admitted that the age of his partners was as young as 15-16 years. He had known K. for three years and during the last year they had engaged in consensual sex a couple of times and had “simply” slept in the same bed more often. The applicant expressed regret that “he [had] sexually abused an 11-year-old boy”. He submitted that he could explain his act with nothing else than alcohol intoxication and, if possible, would like to “apologise to both the child and his parents”.
14.  On 28 February 2006 the applicant was once more interviewed in the presence of counsel. According to the record of the interview he was suspected of having engaged in oral sex with V. and K. (Article 142 § 2 of the Penal Code), keeping on the floor of his home photos depicting a person of less than fourteen years of age in an erotic situation and making thereby these photos available to V. and K. who were minors (Article 178 § 1 of the Penal Code), displaying pornographic videos and magazines to the eleven-year-old V. (Article 179 § 1 of the Penal Code) and inducing eleven-year-old V. and seventeen-year-old K. to consume alcohol (Article 182 of the Penal Code). The applicant partly admitted his guilt and submitted that he stood by his previous statements. He denied having induced minors to consume alcohol in order to abuse them, but admitted that the boys had had an opportunity to drink alcohol. He had not known that possessing the photos in question was illegal and acknowledged that the photos were accessible. The boys could have seen magazines and other photos but not videos, as the video recorder was not working. It was noted in the record of the applicant’s interview that the applicant “sincerely regretted [his] act” and promised to drink no more alcohol. The nature of the “act” referred to by the applicant was not specified.
15.  On 12 April 2006 the prosecutor drew up a bill of indictment. The applicant was charged under Articles 141 § 2 (1), 178 § 1, 179 § 1 and 182 of the Penal Code. On 25 April 2006 he was committed to trial.
16.  On 10 July 2006 the Tartu County Court convicted the applicant as charged. He was sentenced to seven years’ imprisonment. V. was present at the start of the court hearing, but the court then granted the prosecutor’s request that he be dismissed from the hearing and his testimony given during the preliminary investigation be used instead. The applicant did not object.
17.  Both the applicant and his counsel appealed. Counsel complained that the applicant’s conviction had been based solely on V.’s pre-trial statements, and argued that V. had been influenced by the police investigator. She also contended that the act imputed to the applicant should have been classified under Article 142 § 2 (satisfaction of sexual desire in respect of a minor) of the Penal Code and not under Article 141 § 2 (1) (rape of a minor). The applicant, as well as making arguments similar to those of counsel, claimed that the charges against him were fabricated.
18.  On 9 October 2006 the Tartu Court of Appeal upheld the County Court’s judgment.
19.  The applicant’s counsel lodged an appeal with the Supreme Court, mainly contesting the courts’ reliance on V.’s pre-trial statements and the ensuing violation of the applicant’s defence rights.
20.  On 7 March 2007 the Supreme Court quashed the lower courts’ judgments in respect of the applicant’s conviction under Article 141 § 2 (1) of the Penal Code. The Supreme Court addressed the issue of the applicability of the framework decision of 15 March 2001 on the standing of victims in criminal proceedings of the Council of the European Union (200/220/JHA) and the Pupino judgment of the European Court of Justice (Case C-105/03 Pupino [2005] ECR I-5285), referred to by the lower courts. The Supreme Court considered that the courts had drawn incorrect conclusions from the Pupino judgment, and held as follows:
“9.  ... The national procedural law is and remains the applicable law which must be if necessary and possible interpreted in the light of the principles emanating from the framework decision. The Criminal Chamber of the Supreme Court emphasises in this context that according to generally acknowledged principles interpretation of a framework decision (a directive) must not lead to an interpretation of the national criminal law which creates criminal liability not based on law or aggravates such liability. If the law of procedure has to be interpreted in the light of a framework decision, that interpretation is limited by the wording of the Act and its compatibility with the will of the legislator; the fundamental and human rights of an accused within the meaning of Article 6 of the Convention must also be kept in mind. 10.  ... A framework decision must thus be interpreted in such a way that fundamental rights, including in particular the right to a fair trial as set out in Article 6 of the Convention and interpreted by the European Court of Human Rights, are respected (§ 59). It is the court’s task in interpreting the national law to ensure that application of the measures referred to in the framework decision is not likely to make criminal proceedings against a person unfair within the meaning of Article 6 of the Convention, as interpreted by the European Court of Human Rights (§ 60). Thus, it also emerges from the Pupino ruling that a framework decision must merely be involved in the interpretation of national law. Interpretation cannot go beyond the boundaries stipulated in the national law, and the proceedings in respect of the accused must not become unfair as a result of the interpretation of national law ... 13.  The appellant rightly points out that on the basis of the judgment of the Criminal Chamber of the Supreme Court in criminal case no. 3-1-1-86-06 ... the fact that a witness and a victim are minors cannot be considered grounds for not summoning them to court or subsequently disclosing their statements given during the preliminary investigation within the meaning of Article 291 of the [Code of Criminal Procedure, hereinafter “the CCrP”]. In that judgment it was explained that certain reservations may be made in respect of the direct examination of evidence, but only if the right of defence of the accused has been sufficiently taken into account at the time. The Chamber agrees with the appellant that not only the interests of the victim but also the right of defence of the accused must be kept in mind. This principle has also been referred to in the Pupino ruling, on which the courts have based their argumentation ... [T]he Criminal Chamber notes that according to the case-law of the European Court of Human Rights, in cases where the conviction of an accused has been based solely or decisively on the statements of a person to whom the accused did not have the opportunity to put questions either before or during the trial, the restriction of the right of defence exceeds the limits permissible under Article 6 of the Convention. In a situation where the only direct evidence against [the accused] was their statements given during the pre-trial proceedings, such a violation of the right of defence has taken place ... 14.  The Criminal Chamber also points out that the courts have not considered all avenues in law to enable the protection of the interests of a witness who is a minor during court proceedings. In addition to restriction of public access to the court hearing, which gives ground for the court to hold a hearing or a part thereof in private (see Article 12 § 1 (3) of the CCrP), and the special rules for hearing witnesses who are minors (the same applies to victims), under which a victim who is under fourteen years of age must be heard in the presence of a child protection official, social worker or psychologist (see the first sentence of Article 290 § 2 of the CCrP), under the law it is also possible for a witness who is a minor not to attend court in person. Under Article 287 § 5 of the CCrP the court may allow, at the request of a party or on its own initiative, a remote hearing to be conducted under the procedure provided for in Article 69 of the CCrP (and also to use a screen separating the victim from the accused). Under Article 69 § 1 of the CCrP one of the grounds for conducting a remote hearing is the need to protect the victim. When applying that measure a victim can be heard by means of a technical solution which enables participants in the proceedings to see and hear the witness giving evidence live from outside the courtroom, and may question the witness through the [court] (see Article 69 § 2 (1) of the CCrP). The Criminal Chamber of the Supreme Court considers that by the use of the means provided in the Code of Criminal Procedure victims of crimes can be sufficiently protected against the impact of giving statements at a public hearing ... 15.  Regardless of the above, situations cannot be completely ruled out in which a victim or a witness is not able to give statements, in spite of the application of the measures described above, for example because of excessive emotional tension and the resulting potentially negative consequences. It is understandable that, in particular, attacks of a sexual nature have harmful psychological consequences, especially for minors, and that even for purely medical reasons it may be advisable to avoid reminders of such experiences. However, in such a case the assessment of the medical condition cannot be at the discretion of a court or a prosecutor’s office; it must be established in each particular case on the basis of, for example, an expert opinion. Only thereafter may disclosure of the victim’s statements made during the pre-trial proceedings come into question under Article 291 (5) of the CCrP.”
21.  The Supreme Court referred the case to the first-instance court for fresh consideration.
22.  The Tartu County Court ordered a psychological expert report on V. to establish whether he was able to participate in a court hearing and give statements, either at the hearing or by means of remote questioning. In the opinion given by the experts on 14 June 2007 it was noted that V. did not wish to talk about the events and it could be seen from the video-recorded interview (see paragraph 9 above) that V. had been promised that if he told what had happened he would never be asked questions about it again. The psychological experts considered that V.’s intellectual development was slightly behind the norm for his age. They noted that it was characteristic of a child’s memory that after some time (one or two years) a child was no longer able to distinguish whether he remembered a real fact or something heard from others. Repeated questioning would not necessarily yield a more reliable outcome or statements matching his earlier statements. V. became anxious when communicating with adult strangers and he avoided both listening and responding. The experts considered that for the sake of V.’s emotional development it was not safe for him for the matter to be raised again. The experts considered that V. would definitely not be able to make an adequate statement if questioned directly in the courtroom and that the problems would, to a large extent, persist if remote questioning devices were used. The experts did not think that repeated questioning of V. could further clarify the circumstances of the case, while it could be harmful to the child.
23.  Relying on the Supreme Court’s judgment of 7 March 2007 and the experts’ opinion, the County Court refused the applicant’s request for V. to be examined at the hearing.
24.  Having regard to the applicant’s impulsive behaviour at the court hearing, the County Court also ordered a psychiatric report on him. The experts’ opinion in that report indicated that the applicant was not suffering from mental illness. He was found to be suffering from a mixed-type personality disorder expressed in a permanent self-centred attitude, emotional instability, unstable close relationships, impulsiveness, and frequent behaviour deviating from social norms. No need for coercive treatment was discerned.
25.  On 3 October 2007 the Tartu County Court convicted the applicant of rape under Article 141 § 2 (1) of the Penal Code. He was sentenced to six years’ imprisonment. The court relied on the video recording of the interview with V. carried out by a police investigator in the presence of a psychologist the day after the offence. According to V., he and K. had gone to the applicant’s home: they had consumed alcohol and all three had slept in one bed. During the night or early in the morning the applicant had engaged in oral sex with V. and K.
26.  According to K.’s statements, given in court, he had been drunk and asleep and had no recollection of what had happened during the night. He confirmed that when he had woken up in the morning he and V. were naked (they had gone to bed clothed) and their boxer shorts were missing. Later he had heard from V. that the applicant had engaged in oral sex with them.
27.  The court also heard evidence from V.’s older brother, with whom the boys had gone to the applicant’s home seeking the return of their boxer shorts the following evening, and both victims’ mothers, whom the boys had told about what had happened, and who also confirmed that the boxer shorts were missing. According to V.’s mother, V. had been reluctant to talk about what had happened and had cried, something that had not happened before.
28.  The applicant denied the charges. He asserted that V. and K. had accused him in order to take revenge on him. In response to the prosecutor’s question, he admitted having sexual relations, years ago, with persons of both genders aged sixteen years or more but below the legal age. He denied ever having sexual relations with K. In respect of the night in question, he submitted, inter alia, that he had been the first one to fall asleep, and that he had woken up during the night when K. had wet the bed. The defence contested the reliability of V.’s statements, inter alia, challenging the quantities of alcohol allegedly consumed as well as arguing that V.’s allegation that the applicant had put white powder into K.’s glass had been disproved by an expert examination of the boys’ urine.
29.  The court held as follows:
“The statements of the accused and the victims are similar in that in the late evening of 14 December 2005 all three fell asleep in the residence of the [applicant]. There was only one place to sleep in [his] residence – a sofa bed – and all three slept in the same bed, with the accused sleeping between the victims. The victims’ statements fully corroborate each other in that [they] did not undress but when they woke up in the morning they were both naked and the underpants of both were missing. The court has no reason to doubt in the statements of the victims, therefore [it] considers this to be established as fact.
What happened early in the morning of 15 December 2005 in the residence of the accused has been established by the statements of the victim [V.]. Statements made by [V.] during the pre-trial proceedings were disclosed at the court hearing on the basis of Article 291 (5) of the [Code of Criminal Procedure]. During the pre-trial proceedings [V.] was interviewed in the presence of a psychologist. In the expert opinion ... concerning ... the victim given by forensic psychological experts, those experts have, inter alia, assessed the circumstances of the interview with the victim and the victim’s behaviour during the interview. The experts’ opinion is that the manner of questioning used in the victim’s interview on 16 December 2005 was generally appropriate from the standpoint of child psychology. The experts stated that it was wholly natural for a child of that age to start crying in such a situation. During the interview the victim had been generally anxious and stressed, but there was a certain difference between his answers to neutral [questions] and questions related to the unpleasant event: in response to the difficult questions the victim was usually silent ... According to the experts’ assessment the level of the victim’s mental development does not correspond to [his] age. However, he is capable of correctly perceiving and describing in accordance with his level of development his experience of events which have taken place in his vicinity ... In the opinion of the experts it can be concluded from the victim’s behaviour during the interview that what had happened had a negative sense for him ... The court, in assessing the statements of the victim, relying on the opinion of the experts and [its own] conviction developed when watching the video recording of the interview, considers that the statements of the victim are sincere and there is no reason to doubt the truthfulness of [his] statements. The court is convinced that [V.] has replied to the questions put to him in accordance with [his] level of mental development described by the experts and his understanding of what happened. Descriptions of events which would be appropriate for an adult cannot be expected of a victim of such an age. It can be seen from the video recording that it was difficult for the victim to explain what had happened. The court finds that the version of the accused, namely that the victims made up the event to get him charged, is clearly self-justificatory, since in such a case also victim [V.] would also have to give his statements in a more fluent and coherent manner. The truthfulness of [V.’s] statements is indirectly confirmed by the fact that [he] has described the events similarly to [K.] and also to [his older brother and mother]. The latter have given statements to the effect that it was unpleasant for the victim to talk about the events and that they had no reason to doubt what they had been told. [V.’s older brother and his mother] are members of [his] family and they have known [him] for a long time. Therefore their opinion about the truthfulness of the victim’s statements also confirms the court’s conviction that [V.] gave truthful statements during the interview.
The court considers it proved by [V.’s] statements that early in the morning of 15 December 2005, between 4 a.m. and 6 a.m. at the applicant’s home ... [the applicant] engaged in sexual intercourse with minors, 11-year old [V.] and 17-year old [K.], against their will – [he] sucked their penises, having previously induced the minors to [consume] alcohol. He took advantage of their alcohol intoxication, in which state [V.] and [K.] were unable to resist or understand what was happening.
The court considers it necessary to emphasise that the general chronology of the events in question has also been confirmed by the statements of the accused himself. The accused has confirmed that on 14 December 2005 the victims stayed overnight at his home and that they all slept in one bed. Of the events of the night [the applicant] remembers that he woke up because [K.] had wet the bed. The next recollection of the accused is of the morning and the boys leaving. The accused does not remember the actual criminal act.
During the pre-trial investigation the accused admitted sexual abuse of minors and expressed regret for the act, but later retracted those statements. The accused justified changing his statements and the earlier admission of guilt by the influence of his cellmates as well as the later classification of the act as rape under Article 141 § 2 (1) of the [Penal Code] instead of the earlier classification as satisfaction of sexual desire by violence under Article 142 § 2 (1) of the [Penal Code]. The accused has also argued that the charges against him were fabricated and were driven by the victims’ desire to take revenge on him. The court is of the opinion that the accused has not convincingly explained the victims’ alleged enmity towards him. The accused has not indicated any factors that could have triggered such enmity. Nor is the allegation by the accused of a frame-up by the victims supported by other evidence examined in the case. The court also finds that the explanations of the accused of the reasons for changing his statements are not convincing. [The applicant] has confirmed that when [he was] interviewed as a suspect on 29 December 200[5] [and] confessed to the crime he was guaranteed representation by counsel. The accused has also confirmed that defence counsel had not told him to plead guilty. Therefore the court considers the statements of the accused self-justificatory and unreliable in so far as he denies undressing the victims, the criminal act itself and the disappearance of the victims’ underpants. On the basis of the above the court is of the opinion that the charges against [the applicant] are well-founded and that [he] has committed the acts of which he is accused.”
30.  On 20 February 2008 the Tartu Court of Appeal upheld the County Court’s judgment. It endorsed the County Court’s reasoning for not summoning V. to the court hearing, and referred in this context to the psychological expert opinion obtained by the County Court and the fact that the written record and video recording of V.’s interview had been disclosed at the court hearing. In respect of the County Court’s reliance on V.’s statements the Court of Appeal noted:
“The Court of Appeal considers that defence counsel unfoundedly reproaches the County Court in the appeal for basing [the applicant’s] conviction mainly on the statements of the victim [V.]. However, there is nothing strange about this, since the victim [V.] was indeed the direct source of evidence and it is common in cases of sexual offences that the criminal act is experienced by two persons – the victim and the offender. The fact that the victim, who is a minor, told those close to him what he went through confirms and strengthens in the opinion of the Court of Appeal the truthfulness of the victim’s statements.
The Court of Appeal disagrees with the grounds of appeal, namely that the County Court should have excluded from evidence the statements given by [K.], [K.’s mother], [V.’s older brother and V.’s mother] once it had taken into account the victim [V.]’s statements when giving judgment. The Court of Appeal agrees with the County Court that no violations of the rules of procedure have been identified in connection with the interview of the victim [V.] during the pre-trial proceedings. Considering the special features of this kind of crime, there is no reason to exclude from evidence statements from individuals who had become aware of the circumstances of the sexual offence from a direct source, namely the victim [V.].”
31.  On 14 May 2008 the Supreme Court refused the applicant leave to appeal.
32.  Subsequently, the applicant unsuccessfully sought the reopening of the criminal proceedings (teistmine).